Speakers: Brendan McGuire, Lawrence Bacow, Felicia Ellsworth and Seth Waxman

Walsh: In this episode, Brendan is joined by Harvard University’s 29th president, Larry Bacow and our fellow WilmerHale Partners Felicia Ellsworth and Seth Waxman. Seth and Felicia worked closely with President Bacow to challenge the Trump Administration’s controversial directive to ban international students from the US if they took most of their fall 2020 classes online because of the pandemic. We hope you’ll enjoy listening to how this case came together really in an instant and the great work done by the legal team.

McGuire: Joining me today are Harvard University president Larry Bacow and WilmerHale partners, Felicia Ellsworth and Seth Waxman. President Bacow is a lawyer, economist and author who has served as the 29th president of Harvard since 2018. Over the past year, he has led the university through the COVID-19 pandemic and variety of related challenges. Felicia is the vice chair of our Litigation Department—nationally recognized litigator and appellate advocate as well as a leader in our Boston office. And finally, Seth is the co-chair of our Appellate and Supreme Court Litigation Practice and previously served as solicitor general of the United States. This story gained national attention in July 2020. However, the story goes back to March 13, 2020. First, a bit of legal background, generally, a citizen of a foreign country who wishes to enter and study in the United States must obtain a student visa to do so. As the seriousness of COVID gripped the world in March 2020 the US government suspended a rule that students in the US on certain student visas had to attend most classes in person. This allowed universities to focus on student safety and health when making decisions about how to adapt their programs without fear that international students would forfeit their student visas if the universities switched to remote learning. However, on Monday July 6th, everything changed both for international students and the US universities they attended. On that day, US immigration and customs enforcement, commonly referred to as ICE issued a directive that barred international students from being physically present in the United States or from returning to the United States from abroad if they plan to take more than three credit hours in online course work during the fall semester. With many schools across the country, including Harvard, having already decided to offer online only or hybrid learning for the fall semester, thousands of international students still in the US faced the prospect of having to return to their home countries or risk imminent removal proceedings. In addition, international students who had gone home during the pandemic suddenly had to negotiate hazardous conditions, travel restrictions, and other obstacles to try to physically return to the US to attend in person classes in order to maintain their visa status. The response from Harvard to this directive was an immediate and forceful one which impacted the lives of thousands upon thousands of students and their families. This is the inspiring story of how Harvard and a team of lawyers at WilmerHale came together to defend students during a pandemic and a herculean effort to file a successful lawsuit for those students in a mere 23 hours. And with that, Seth, I will turn it over to you.

Waxman: Thanks, Brendan, and President Bacow who I will here and after refer to as Larry, thank you so much for joining us and for this opportunity to talk about what, at least, for us was quite a rewarding and quick engagement. Larry, let me take you back to March of last year and the early phase of the pandemic. As COVID-19 started to surge in Massachusetts, you made the early and then, I think, somewhat controversial to close down the Harvard campus on March 10th. You’re now credited of being ahead of the curve in terms of taking swift measures to protect the Harvard community. But, how did COVID-19 effect the university in those early days of the pandemic?

Bacow: Well, first, thanks for having me on, Seth. We had been monitoring what was going on in the rest of the world with this virus then known as the Coronavirus, specifically watching what was happening both in China as well as in other countries that seemed to be ahead of us at least in terms of the way in which they were dealing with this virus. One of the advantages of being president of Harvard is that I have access to our faculty and that included some of the world’s foremost experts on epidemiology, neurology, public health, infectious disease and we had watched the essential doubling of cases in Massachusetts over the previous four or five days and it just became clear that if we weren’t careful we were going to wind up where Italy was or China was or Spain was in dealing with the virus. We knew that we’d be criticized or I knew that I would be criticized by making the call early but this was a case where the cost of being wrong were asymmetrical if we close down and turned out it wasn’t necessary we would’ve inconvenienced a lot of people we would have squandered a lot of resources. If we failed to do it and our students were on the verge of going home for spring break and they dispersed and then came back and then brought the infection to campus the cost of being wrong there would be measured in human life so it actually turned out to be not that difficult to call.

Waxman: Can you talk briefly about the importance of Harvard’s international students and their contributions to the classroom, the campus, and the wider community?

Bacow: Well, about a quarter of our students come from someplace else. That’s university wide. In some schools it’s a much higher percentage. If you go to the Kennedy school, it’s close to 50% the same is true at the Graduate School of Design and elsewhere. We try to recruit the best and the brightest from around the world and for many of them it’s been their lifelong dream to come to the United States and pursue their education and to do it at Harvard. It’s not just our international students I would also add that a third of our faculty were born someplace else and we are home to the largest number of international scholars than any other university in the country.

Waxman: So, if I have my numbers right, you have about 5,000 international students attending on F1 visas. Can you talk about in the early days what the pandemic meant for them, how it impacted them, and how that impact affected the planning that you were doing for the fall semester?

Bacow: So, after we made the decision to send students home, many of our international students could not go home. They could not travel at that point. We made accommodations for them to stay on campus. So, the expectation was that when we resumed instruction in the fall they would still be here on campus and we had not at that point in March made the decision to switch all of our teaching to remote instruction. The government had adopted a waiver basically which allowed international students who are on F1 visas to stay in this country during the pandemic during this national emergency notwithstanding the fact that classes were not being conducted most places in person. That many institutions had gone to remote instruction and so we had relied upon the and our students had relied upon that also in formulating our plans for the fall and those students were very much at risk if the government changed its mind as it ultimately did.

Waxman: So, on July 6th the Monday after the 4th of July ICE the immigration and customs enforcement agency announced that all international students on F1 visas whose fall classes would be completely or largely online would not be able to remain in or return to the United States. So set the scene for us as I said it’s right after the 4th of July weekend, I don’t know where this was in your planning for the fall but how did you hear about the directive, what went through your mind, and what were your immediate concerns?

Bacow: We had literally just announced our plans for the fall. We had just released them, and we told our students that while we would have a number of students in residence on campus all of our instruction was going to be online. We did that because we did not know at that point whether or not it would be safe to teach students in person on campus and so we had designed a program which was built around the best knowledge we had at the time about the virus, about how infectious it was and we were doing our best to keep not just our students safe but our faculty and staff safe and we had concluded that the best way to do that was by having essentially all instruction initially be online. That announcement came out the day before the government made its announcement, so it actually felt like it was aimed directly at us. It would have required every international student basically to go home. They would have been in this country illegally based upon the announcement that was made by ICE and moreover if they failed to honor, they risked not being back into this county in the future to continue their studies. So, it was extraordinarily disruptive to our students. I'd began receiving emails from foreign students and candidly initially they were sort of overwhelmed by the emails I was receiving from other students as well as people wanted to know more about our plans for the fall. As I sort of got out from underneath some of the other messages I started to focus on the challenges that our international students faced and there was one email in particular that I got from an international student who had attempted to board a flight to come to the United States and had been turned away at the airport in part because of this ICE directive already and so it became very very clear that this was going to be unbelievably disruptive not just to our students but essentially to the million international students who study in the United States every year.

Waxman: Felicia, let me turn to you for a moment. When the government makes an abrupt policy reversal like this, what’s your first reaction or even your second reaction as a lawyer?

Ellsworth: This one in particular I think screamed out to everybody, myself included, as a classic violation of the Administrative Procedures Act so we immediately, much like President Bacow, I was hearing from our community partners, those who we provide pro bono support to and in the immigration community about the devastating impact that this directive was having already on the international students, many of whom were already in the country and trying to determine if they need to leave or trying to figure out how they’d get back in having made plans etc. So, what immediately came to mind was first that just that the tragic and unnecessary kind of personal devastation that this was wreaking on people and then second what a wrong headed legal decision this was on the part of the government and how susceptible to a challenge this was and this was before we had even heard that Harvard was interested in mounting such a challenge. Everybody knew that this policy was ripe for a challenge.

Waxman: So, Larry, the administration issues this directive, on the 6th at 6am the next morning, you contacted us about whether Harvard could challenge the ICE directive in court. What led you and your colleagues at Harvard to decide to take this step?

Bacow: I went to sleep that night thinking about this issue. I wake up early every morning. When I got up, first thing I do, always, is to check my email and I saw I had a bunch of additional emails from international students. As you probably know, Seth, I’m trained as both a lawyer and an economist. I never practiced law, but I did remember at least a little bit of civil procedure and this struck me as, first of all, illegal, as Felicia has already said under the Administrative Procedure Act. Now, I’m not a scholar the APA but the DACA decision had just come down not too much earlier and the decision there rested at least in part upon detrimental reliance upon the government’s prior acts, and in this particular case we had a similar fact situation here. Not only that, but it was clear that if this not get reversed and get reversed quickly, we were going suffer irreparable harm. So, it seemed to me that there was at least an opportunity here to go for a temporary restraining order. Actually, I did not technically contact the firm, I contacted the senior fellow of the Harvard corporations who, as you know, Seth, is your partner, Bill Lee. I sent an email, in fact, to Bill Lee, to John Manning, the Dean of the law school, and to Diane Lopez, who is our general counsel and I said I was concerned about this. I was thinking that we should see whether or not we could seek a temporary restraining order. I wanted to check my legal thinking against theirs. They are all real lawyers. I am not. And I said get back to me as soon as you get this message. Within about ten minutes I had already heard from I think Bill and John and I said now that you’re awake, call me because I want to move very quickly on this. And by 6:15, I think I had John, Bill, and Diane all on the phone. Everybody quickly concurred that we had a very strong legal case and I said let’s move and I wanted to move forward as quickly as we could possible do it. And in fact, at that point I had hoped that we could file by that evening.

Waxman: So, as it happens, your senior fellow and our partner essentially pressed the forward button immediately and for better or for worse, Felicia and I and others at the firm are also early risers and I think it’s fair to say that by 6:20 we were already talking about the merits of it, how we were going to staff it up and definitely by 8:00 we understood that the University had decided to bring suit, shortly thereafter MIT joined the effort, and then a mere 23 hours later in an all hands on deck effort we sprinted to file a 93 paragraph complaint, temporary restraining order, supporting declarations in the District of Massachusetts at 7am the following morning. Felicia, can you just go through and explain why we decided to file so quickly?

Ellsworth: The reasons were pretty obvious, and they jumped out at us. Larry actually wanted us to file that same day. We needed every minute of those 23 hours that we took though to pull together what Seth has just described. So, the first and most obvious reason why we felt that it was important, all of us, you know, the clients and those of us to file quickly was because of course this really was having an irreparable harm on the students and on the universities. A lot of plans had been put in place and then Larry described some of the careful and thoughtful planning that had gone into Harvard’s own re-opening plan but every other university and institution of higher education around the country had been doing the same. Many had announced their plans but some had not and so to have this monkey wrench thrown into things in the middle of July when schools were just weeks away from opening, you know, we really needed quick action in addition to the individual students who were being so devastatingly impacted by this. The other thing to remember is this directive, it was issued on July 6th and it had a July 15th deadline by which the universities had to provide a so called certification about whether they were going to be all remote or not. So there was a date baked into this and the decision point for universities about whether they would change previously announced plans or whether they could try and put together a plan that would allow them to keep some of their international students either in the country or have them be able to re-enter. So it was clear that we needed to get this on file as soon as humanly possible and I think that the 23 hours was just about as soon as humanly possible in this case.

Waxman: Tell us about those 23 hours and how the team managed to pull this off.

Ellsworth: As soon as we sort of learned that Harvard wanted to challenge this and that MIT would be joining we pulled together a team, many of whom were veterans of our Harvard admissions case as well where we were privileged to represent the University successfully in the challenge to its undergraduate admissions practices. We had people who were experts in administrative law, experts in immigration law as well as just general litigators who could put together a complaint and we split the team essentially into two groups. One was focusing on the law and what were the legal challenges we would bring, what our Administrative Procedure Act complaint would look like, sort of the strength of those challenges and what we needed to support them. And then the other half of the team focused on the factual development. We immediately hopped on a day long and night long series of Zoom calls with administrators at Harvard and MIT and some students that we had been put in touch with, current students of both institutions to put together declarations and factual support for the irreparable harm that would be suffered by both the universities, the institutions, and the students if this policy wasn’t immediately taken off the books.

Waxman: And what were the arguments we made in the complaint?

Ellsworth: We’ve mentioned the Administrative Procedure Act several times and essentially that the primary argument was this was an arbitrary and capricious decision. That it wasn’t well reasoned, it wasn’t backed by the type of process that one is expected to have for a monumental policy change of this time. We were also as a sort of subset of that argument, we were aided by something Larry had mentioned earlier which is the universities and the students had really been relying on the policy that had been essentially relaxed in March allowing international students to pursue a remote course of study in a way they typically weren’t allowed to under the ICE rules. So, in reliance on that policy which was issued at the beginning of COVID pandemic of course the pandemic was still raging in July and is still raging as we record this. So, people had made plans. Institutions had made plans on the way in which they would reopen having an understanding on how that would impact or not impact their international students and the students of course had made plans about whether they were going to return to the country if they’d been able to leave, about where they were going to live. We had people who had signed leases that they were going have to break if they were going to be forced to leave the country. So, the reliance interests were really quite real here and the big part of the legal arguments that we put together in the complaint and the request for a TRO.

Waxman: Larry, tell us about how and when MIT joined.

Bacow: Well, so, when I talked to Seth and Diane and John early in the morning. One of the things in which I said was that I thought that strategically it would be helpful if we did not go this one alone. That if we had another institution in there with us and I volunteered to contact my counterpart at MIT, Rafael Reif. As you probably know, I spent 24 years on the faculty at MIT. I’ve known Rafael forever and I know the place well and so it was an easy phone call to make. I thought the power of having two institutions of the stature of Harvard and MIT together made sense. It also helped that MIT had essentially adopted the same program we had for the fall and that is that they had invited approximately the same number of students back to their campus just one class as we did. Plus, international students and those who could not study from home and similarly, they had elected to have all of their teaching remote. And, so, the factual situation was close to identical to ours. I knew I could get Rafael on the phone very quickly and I thought that the optics of having Harvard and MIT together was quite powerful. It turns out, Rafael was about to start an MIT corporation meeting. He said if you’re in this, we’re in this. I explained to him that we were going to move quickly and that ideally, I wanted to file by the end of the day if we could. I explained to him that they would have to trust us basically to oversee the litigation from the client’s perspective. We would obviously need people from the MIT side to make the same kinds of declarations that our people were making but that there wasn’t going to be a lot of time to have two different groups reviewing everything and that he had to trust us in this case in which he did. He said give me 15 minutes and I’ll call you back and 15 minutes later he called me back and said we’re in.

Waxman: Did you hear from other universities? Did you consider, you know, also involving other universities as plaintiffs?

Bacow: Candidly, I did not consider involving anybody else. I thought that it was enough to have two and I think that my recollection is that Diane, John, and Bill concurred in this. Immediately after we filed, and I gave a heads up to a couple people that we were going to, there were certainly offers from other institutions that were interested in being co-plaintiffs but at that point we were off and running and did not want to slow things down and there were plenty of opportunities for people who support us by joining amicus briefs which, as you know, many universities did and I was also pleased that we were joined by, I believe, 23 state attorneys general, by the mayors of a number of cities that hosted major institutions and that would feel the economic effect of a loss of international students and then also wide spread support from industry as well which recognized the importance of international students to the US academic enterprise but also to the US long term economic interests and most pleasantly the support of the US Chamber of Commerce which was not known necessarily for supporting the kinds of issues that universities typically litigate.

Waxman: I can say, I guess, two things on behalf of your legal team. Number one, the fact that MIT’s program, although, very similar to Harvard’s was actually different in some respects. Help us to present a more complete picture to the Federal Court about the impact this would have, but it is also true that if you had suggested adding even more universities as complainants your cracked 23 hour team probably would have cracked. So, Felicia, we drew a judge. Not just any judge, as it happens, under the luck of the draw, the same judge that presided over the admissions case. We had a bunch of early status conferences, but the oral arguments were scheduled very promptly for July 14th. Tell us what you heard from the other side as the litigation progressed and the oral argument day approached and what happened?

Ellsworth: As Larry mentioned we had this outpouring of support from all around every corner supporting us in our litigation which was the first filing was moving very quickly but remember also there was probably 8-10 other independent litigations that were started in the time between we filed our complaint and the oral argument was scheduled for July 14th. So, the Federal Government was being hit on all sides with this policy change and I think was quickly thinking about what it could do to get itself out of this mess. So, we’d had a number of status conferences as you mentioned and a number of offline conversations with the Federal Government about the timing of briefing and some of those more logistical matters but they’d also expressed an interest in figuring out if there was something that Harvard and MIT would be satisfied with that would sort of moot the litigation or at least cause things to slow down a little bit. So, we’d had these conversations and essentially every time our response was after conferring with the client that the only satisfaction here is to undo this policy. That’s the only, I can’t think of anything else that would solve this problem. And as we were sitting there preparing for what would be a Zoom argument in front of the Federal District Court in Massachusetts, we got a phone call, I think it was about 27 minutes before the argument was scheduled to begin from our primary contact who indicated you know essentially here’s what we’re willing to do. And while it was termed as a settlement proposal what the government indicated it was willing to do was exactly the relief we had sought which was to completely pull down the policy and revert back to the position that ICE had taken and the administration had taken in March which remains the law of the land today which allows international students to remain in the country even if they’re not pursuing or even if they are pursuing a full remote course of study. So, we got that phone call. We quickly convened the clients to say you know complete capitulation which seems to be the result we wanted and we quickly spoke to the judge before the public hearing began to inform her so she wasn’t sort of blind sided by the fact that this argument that she had spent the whole weekend preparing for and was ready to hear and potentially you know rule on the bench if not very quickly because, remember that July 15th date was looming and still in place. Essentially, the position the government was taking was going to allow her to save whatever she had written whichever way it came down, put it in a file and never let it see the light of day. So, we informed the judge and then we all got on the record for a Zoom conference that if memory serves, I think there were 998 attendees or something. You could count how many people were trying to log on. There was just this immense public interest in this particular hearing at which the judge announced that the government had agreed that it would be reverting to the March policy and that she was not going to hold the hearing on the preliminary injunction or TRO. And, I think after four minutes on the record, we concluded the hearing.

Waxman: Larry, can you just reflect a little bit on how this successful challenge has affected higher education institutions across the United States?

Bacow: First, everybody breathed a big sigh of relief that we could go forward with our planning for the fall as we had all imagined and that our international students would not have their lives turned upside down. I also think that the higher education community felt good about how we collectively had all come together to try and do the right thing and it was a victory over an administration in which candidly, I think, had tried to politicize higher education for partisan advantage in ways that not only did harm to institutions but even more than that did harm to the students who are just trying to do their best to better their own lives by studying here. And, so, there was relief, there was a sense of satisfaction and there was also recognition that it was really important, I think, collectively for all of us to stand up for what we thought was right and I can also tell you on the Harvard campus that we were all incredibly grateful for the legal representation that we had in this case that we were able to do things as quickly as we did in large part because we were able to activate the same legal team that has represented us so well in that admissions litigation.

Waxman: What do you think this case and this decision means for us as country and as a people?

Bacow: Oh, hard to tell. One of the reasons why historians try not to write history immediately is because there’s benefit from having some distance from the immediacy of the circumstances. You know, I would hope that this would signal the doors to this country will remain open to foreign students and foreign scholars going forward. I would hope that any future administration that sought to try and close those doors would understand that this is something which the higher education community is going to fight to protect and I would hope that the higher education community itself would recognize that there’s much that we can accomplish when we all work together and in collaboration with other institutions in our society that both understand and appreciate the opportunity to get a great education can mean to so many that would include business, government at all levels, and private citizens who I think understand that colleges and universities have much to contribute to this country. Let me just also note that as we try to find our way out of this thicket that’s represented by the pandemic that what is likely to ultimately rescue us, the vaccines that are being produced are in many cases being produced by those who came to this country from other places to study at the great research universities that exist in the US. The first vaccine approved for distribution in the United States or one of the first, the Moderna vaccine, comes out of one of our laboratories at Harvard and in fact Moderna itself is led by immigrants and people who came here to study. So, I think there’s a lesson there for all of us as well.

Waxman: Larry and Felicia, thank you so much for spending some time to share this inspiring story and helping define who we are as a country.

Bacow: Thank you very much. And, again, my thanks to both of you for representing us in this important piece of litigation.

Ellsworth: Thanks so much.

McGuire: Yes, thank you, Larry and Felicia, and thank you, Seth, for moderating. This is just a remarkable story and a victory shared by so many students and their families say nothing of the rule of law. And that’s it for another episode of In the Public Interest. Thank you all for listening. If you enjoyed this episode, please share it with a friend and take a minute to subscribe, rate, and review us wherever you get your podcasts. We’ll see you next time.